PEOPLE v. ALEXANDER

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Juanita ALEXANDER, Defendant and Appellant.

No. A040418.

Decided: January 24, 1989

Nella Bertin, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Catherine A. Rivlin, Supervising Deputy Atty. Gen., and Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

This appeal presents another facet of the probation revocation setting examined in People v. Latham (1988) 206 Cal.App.3d 27, 253 Cal.Rptr. 379.   In Latham, we held that when a prison sentence has previously been imposed and execution suspended during a period of probation, the trial court need not—upon revocation of that probation—state reasons for the decision to order the suspended sentence into execution.   In the case sub judice, we are presented with the converse situation.   The question here is whether the trial court must give reasons for committing the probationer-defendant to prison when no sentence has previously been imposed.   We answer in the affirmative for the reasons which follow.

FACTS

We recite the salient facts:

Defendant pled guilty to possession for sale of marijuana pursuant to a plea bargain involving dismissal of other charges (possession of cocaine, possession of a hypodermic syringe and obstructing a police officer).   Imposition of sentence was suspended, and defendant was placed on formal probation for three years.

Two months later, the People moved to revoke probation on the ground that defendant had committed a new drug offense.   The presentence probation report recommended that probation be continued, noting that although defendant had an extensive misdemeanor record, the present offense was the 34–year–old defendant's first felony.   In a supplemental report, the probation officer again recommended probation and treatment for defendant's acknowledged addiction to heroin.

At the hearing, evidence was adduced that defendant sold rock cocaine to an undercover officer.   The probation officer testified that defendant would benefit from a drug treatment program.   The trial court determined that defendant had violated her probation and that probation should be revoked.1  Immediately thereafter, defendant was sentenced to state prison for the middle term of two years.

DISCUSSION

I. Statement of Reasons

Defendant's appeal raises a single issue:  whether the trial court prejudicially erred in failing to give reasons for declining to reinstate probation and its choice of imprisonment.

We begin our analysis by noting that while a decision to grant probation is expressly identified as a sentence choice (Cal. Rules of Court, rule 405(f)), the correlative decision to deny probation is not.2  A decision to deny probation is not a “disposition of the case” but rather a predetermined result subsumed within the ultimate choice of imprisonment.3  (People v. Brandt (1987) 191 Cal.App.3d 143, 147–148, fn. 3, 236 Cal.Rptr. 258;  People v. Butler (1980) 107 Cal.App.3d 251, 254, 165 Cal.Rptr. 709;  People v. Ramos (1980) 106 Cal.App.3d 591, 599, 165 Cal.Rptr. 179.)

Thus, the mere decision to deny probation, in and of itself, is not a “sentence choice” which requires reasons.  (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701;  see also People v. Jardine (1981) 116 Cal.App.3d 907, 923, 172 Cal.Rptr. 408.)

Nevertheless, whenever the trial court imposes the middle term of imprisonment, rule 439(d) requires a statement of reasons for selecting imprisonment as the sentencing choice.4  Thus, this court and other reviewing courts have repeatedly held that when the sentence choice is the middle term (for which reasons are not required), a statement of reasons must be given for the choice of imprisonment as an alternative to probation.   (People v. Romero (1985) 167 Cal.App.3d 1148, 1151, 213 Cal.Rptr. 774;  People v. Mobley (1983) 139 Cal.App.3d 320, 324, 188 Cal.Rptr. 583;  People v. Salazar (1980) 108 Cal.App.3d 992, 1000, 167 Cal.Rptr. 38;  People v. Arceo (1979) 95 Cal.App.3d 117, 121, 157 Cal.Rptr. 10;  see also People v. Wychocki (1987) 188 Cal.App.3d 1063, 1066, 233 Cal.Rptr. 830;  People v. McNiece (1986) 181 Cal.App.3d 1048, 1058, 226 Cal.Rptr. 733;  People v. Martinez (1985) 175 Cal.App.3d 881, 896, 221 Cal.Rptr. 258;  People v. Roe (1983) 148 Cal.App.3d 112, 119, 195 Cal.Rptr. 802.)

Though the distinction may appear meaningless in a pragmatical sense (People v. Mobley, supra, 139 Cal.App.3d at p. 324, 188 Cal.Rptr. 583), nonetheless, the distinguishing principle remains viable:  reasons are not required to be stated in denying probation but must be given in choosing imprisonment.5  In the case at bench, the trial court selected the middle term but gave no reasons for its decision to impose a prison sentence.   In this respect, the trial court erred.

II. Time for Reasons

Relying on certain language of this court in People v. Slaughter (1987) 194 Cal.App.3d 95, 239 Cal.Rptr. 337 (Div. 4), the Attorney General argues that because the trial court's decision committing defendant to prison was not the initial sentencing choice, but was made upon revocation of probation, no reasons were required.   Our analysis leads to a contrary conclusion.

 In Slaughter, a divided court concluded by way of dictum that the decision to commit the defendant to prison upon revocation of probation is not an “initial” sentencing choice requiring reasons.   The Slaughter majority read Penal Code section 1170, subdivision (c), to require a statement of reasons only once—when imposition of sentence is suspended and probation is granted:  “We reject the argument [that sentencing upon probation revocation is a sentencing choice].  To so hold requires us to find two ‘initial sentencings':  (1) when imposition of sentence is first suspended and (2) when sentence is imposed following revocation.   Both the Legislature and the Judicial Council, in adopting statutes and rules respectively, were well aware of the stage of proceedings with which we here are confronted—i.e., sentencing following revocation.   Neither legislative body chose to require reasons at this stage.”  (194 Cal.App.3d at p. 98, 239 Cal.Rptr. 337.)

However, as we read the governing statutory and sentencing rules, a duty to state reasons arises whenever a sentence is imposed, even though an earlier disposition (a grant of probation) may have been made.

 Probation may, of course, be granted in one of two ways:  (1) in connection with imposition of sentence and suspension of execution thereof, or (2) in connection with suspension of imposition of actual sentence.   (Pen.Code, § 1203, subd. (a).)  In either case, reasons are expressly required for the decision to grant probation.  (Cal.Rules of Court, rule 405(f).)   Yet, only in the former situation has there been a true “sentencing.”  (People v. Latham, supra, 206 Cal.App.3d 27, 253 Cal.Rptr. 379.)   In the latter case, when no sentence was imposed at the time probation was granted, a subsequent decision terminating probation requires that judgment be pronounced and sentence be imposed for the first time.   (Pen.Code, § 1203.2, subd. (c).)

The sentencing rules make clear that upon imposition of sentence, the court must state its reasons, even when the sentencing occurs after revocation of probation:  “Upon revocation and termination of probation pursuant to section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison:  [¶] ․  If the imposition of sentence was previously suspended, the judge shall impose judgment and sentence [pursuant to] rule 433(c).”  (Cal. Rules of Court, rule 435(b)(1);  emphasis added.)   Rule 433(c), in turn, provides:  “If a sentence of imprisonment is to be imposed, ․ the sentencing judge shall:  [¶] ․ Pronounce the court's judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.”  (Emphasis added.)

 Thus, we believe that a reasonable construction of applicable sentencing principles may impose a dual obligation on the trial court to state reasons when probation is granted:  once, when imposition of sentence is suspended and probation is granted, and again if probation is subsequently revoked and terminated and sentence is thereupon imposed.6

Our analysis is supported in a parallel context by our opinion in People v. Jackson (1987) 196 Cal.App.3d 380, 387, 242 Cal.Rptr. 1, where we stated [Holmdahl, J.]  “Having initially opted in favor of probation, the trial court was once again faced with the same choice upon revocation of probation․ (Pen. Code, § 1203.2;  rule 435.)   Upon making its choice to grant or to deny probation for the second time ․, the trial court was as much bound to base its choice on criteria dictated by the rules of court and to state the reasons for its choice as it was the first time.”

We find the cogent analysis advanced in the Slaughter dissent persuasive:  “There is no question in my mind that the definition [of sentence choice] includes a decision to send a defendant to prison upon termination of probation where imposition of sentence was previously suspended․ [¶] ․ [R]ule 433(c) requires that in imposing sentence following revocation of probation the sentencing court must follow the identical procedure it would use in imposing sentence for the very first time following a jury verdict.   Put plainly, the judge must give reasons for each and every sentencing choice he or she makes․ [¶] ․ To the contrary [of the majority's rationale], two sentencings are contemplated, endorsed and required by the drafters of the Rules of Court.”  (194 Cal.App.3d at pp. 100–101, 239 Cal.Rptr. 337 (dis. opn. of Poché, J.).)

Although the Slaughter court alluded to its earlier holding in People v. Cushway (1987) 193 Cal.App.3d 776, 238 Cal.Rptr. 527 [when probation revoked subsequent to suspended execution of sentence, no reasons required in denying reinstatement of probation], it failed to discuss the distinguishing procedural posture in which Cushway arose.   As we previously noted in People v. Latham, supra, 206 Cal.App.3d at p. 30, 253 Cal.Rptr. 379, Cushway involved a prior imposition of sentence with suspension of execution thereof.   Consequently, upon the subsequent revocation and termination of probation, no sentence remained to be selected or imposed.

In contrast, in Slaughter, as here, imposition of sentence had been suspended.   Thus, upon revocation and termination of probation, the trial court was faced with another sentencing choice which, under controlling sentencing principles, required supporting reasons.

Accordingly, we hold that where sentence has not been previously imposed, the decision upon revocation and termination of probation to impose a prison term is a sentencing choice requiring reasons to be stated.

III. Separate Reasons

 Finally, the Attorney General argues that the trial court's reasons for revoking probation satisfies the court's obligation to state its reasons for committing defendant to prison.   We disagree.   We think the decision to revoke probation is conceptually different from the sentencing choice made upon revocation and termination of probation.

A grant of probation is, by definition, “conditional and revocable” (Pen. Code, § 1203, subd. (a)), and upon defendant's violation of any of the conditions, probation may be revoked.  (Pen. Code, § 1203.2, subd. (a).)  However, due process principles require the trial court to articulate sufficient reasons supporting its revocation of probation.  (Morrissey v. Brewer (1972) 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484;  People v. Vickers (1972) 8 Cal.3d 451, 457, 105 Cal.Rptr. 305, 503 P.2d 1313;  People v. Buford (1974) 42 Cal.App.3d 975, 985, 117 Cal.Rptr. 333;  People v. Baker (1974) 38 Cal.App.3d 625, 630, 113 Cal.Rptr. 244.)   Here, the trial court clearly and adequately announced its reasons for revoking and ending probation.  (See fn. 1, ante.)

But the decision to revoke probation does not trigger automatic consequences.   At that point, the trial court has the option to reinstate probation on the same or modified terms, or to terminate probation and commit the probationer to prison.  (Pen. Code, § 1203.2;  Cal. Rules of Court, rule 435(a) and (b)(1);  People v. Bookasta (1982) 136 Cal.App.3d 296, 300, 186 Cal.Rptr. 193.)

As we explained in Part II, ante, when, as here, no sentence was previously imposed, the selection of the latter option to send the defendant to prison is a sentencing choice requiring reasons.  (Cf. People v. Latham, supra, 206 Cal.App.3d 27, 253 Cal.Rptr. 379.)   One of the primary aims of the required statement of reasons is to ensure that the sentencing court is fully apprised of its choices in exercising its sentencing discretion.  (People v. Belmontes (1983) 34 Cal.3d 335, 348 and fn. 18, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. Brandt, supra, 191 Cal.App.3d at p. 147, 236 Cal.Rptr. 258.)   Although it appears that the same reasons considered to revoke probation may often be used to justify a prison sentence,7 the record before us does not reflect the trial court's awareness that in declining to reinstate probation and committing defendant to prison, it was making a separate choice in addition to the decision to revoke probation.

The judgment is reversed, and the matter is remanded for resentencing in accordance with the views expressed herein.

I concur with the majority opinion that where sentence has not been previously imposed, the decision upon revocation and termination of probation to impose a prison term is a sentence choice requiring reasons to be stated.   I dissent from the majority opinion that the trial court's statement of reasons for revoking and terminating probation does not satisfy its obligation to state its reasons for committing defendant to prison.

The purpose of section 1170, subdivision (c) of the Penal Code and rule 443 of the California Rules of Court is to provide uniformity and proportionality in sentencing, meaningful appellate review of possible discretion abuses and a demonstration that the court has used “informed discretion.”   (People v. Brandt (1987) 191 Cal.App.3d 143, 147, 236 Cal.Rptr. 258;  People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.)  Section 1170, subdivision (c) and rule 443 require that the sentencing court state in simple language the primary factor or factors that support the exercise of discretion.

The exercise of judicial discretion following proof of violation of probation conditions is very similar to the exercise of discretion in sentencing.   When the reasons given for revoking and terminating probation meet the requirements of the rule and statute, a separate and additional statement of reasons for selecting a state prison sentence is not required.   It may be noted that California Rules of Court, rule 421(b)(4) and (b)(5) provide that a sentencing court may consider the fact that a defendant's unsatisfactory probation performance or commission of a new crime while on probation as a factor to support the imposition of the aggravated prison term for an offense.

In the instant case, the trial court, following the hearing, made the following statement:  “The Court, having heard the testimony in this matter and also having considered the original probation report of June the 3rd, 1987, and having read that, and also the supplemental report of the 24th of September, 1987, considering all the facts here, that Ms. Alexander never reported to the Department and failed to register under 11590 of the Health and Safety Code, and further, that she is involved in the sale of rock cocaine, the Court finds that the People, through clear and convincing evidence, have proved that the defendant has willfully and intentionally violated her probation.   Therefore, probation is revoked or will remain revoked.”   The trial court has supported its decision to revoke and terminate probation with reasons stated orally on the record which meet and satisfy the purposes and goals of section 1170, subdivision (c) and rule 443.   When the court finds proof of a willful and intentional violation of probation, supported by substantial evidence, the record is sufficient.   The reasons for revoking and terminating probation are the reasons for selecting a state prison sentence (People v. Cushway (1987) 193 Cal.App.3d 776, 238 Cal.Rptr. 527) and need not be stated twice.

FOOTNOTES

1.   The court explicitly based its determination on defendant's failure to report to the probation department or to register as a convicted drug offender and her complicity in the sale of cocaine.

2.   Rule 405(f) defines “sentence choice” as follows:  “ ‘Sentence choice’ means the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial.   It includes the granting of probation and the suspension of imposition or execution of a sentence.”

3.   In its comment to California Rules of Court, rule 443, the Advisory Committee states that neither Penal Code section 1170, subdivision (c) nor the sentencing rules require a statement of reasons explaining rejection of “possible dispositions” such as denial of probation.

4.   Rule 439(d) provides as follows:  “Selection of the middle term does not relieve the court of its obligation under section 1170(c) to state the reasons for imprisonment as its sentence choice.”

5.   Of course, when the trial court selects the upper term (and gives reasons for that decision), a separate statement of reasons for selecting prison would not seem to be required;  such reasons would be implicit within the reasons for the aggravated sentence.  (People v. Brandt, supra, 191 Cal.App.3d at pp. 147–148, fn. 3, 236 Cal.Rptr. 258;  People v. Butler, supra, 107 Cal.App.3d at pp. 253–255, 165 Cal.Rptr. 709;  People v. Ramos, supra, 106 Cal.App.3d at p. 599, 165 Cal.Rptr. 179;  see also People v. Gopal, supra, 171 Cal.App.3d at pp. 547–549, 217 Cal.Rptr. 487 [consecutive sentences].)

6.   As we explained in People v. Latham, supra, 206 Cal.App.3d 27, 253 Cal.Rptr. 379, when sentence is imposed at the time probation is granted, and only the execution thereof is suspended, then the trial court will have only a single obligation to state reasons.   If probation is later revoked, the decision to remove the stay or suspension of execution is not a sentencing choice, sentence having been previously imposed at the time probation was granted.

7.   Here, the trial court's reasons for revoking probation—especially the commission of a new and serious crime—would similarly justify the court's decision to impose a prison sentence rather than to continue defendant's probation.   We know of no legal ground which would bar the trial court's use of the same facts for both decisions.  (Cf. Cal. Rules of Court, rule 441(a) [fact used to deny probation may be used to impose upper term or enhancement].)

RACANELLI, Presiding Justice.

HOLMDAHL, J., concurs.